1/4/2011

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Thanks to A.S. in the comments to the prior post on the Proposition 8 happenings today, I learned that Reinhardt had finally issued the memo explaining why he didn’t need to disqualify himself. You can see where I previously argued he should, here. And you can read his memo on why he isn’t doing so, here. When he first refused, Patterico wrote:

I’m not saying that is relevant. It will just be a fuck you. And Reinhardt is all about that.

If any of you were fool enough to take that bet, you owe Patterico $100 a pop. I might suggest you deliver it by the various donation options on the side (and maybe consider doing so even if you didn’t take him up on the bet).

Anyway, so this is the logic. First, Reinhardt calls the proponents sexists. Yes, really: “Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses.” I actually agree with his ultimate argument that you cannot project the opinions of one spouse to another but there is no need to insult the proponents in the process.

Then he discusses his wife’s connections to the actual suit:

The first such action to which Proponents point is that my wife and the ACLU/SC’s then-legal director attended a meeting with one of Plaintiffs’ lawyers and a supporter of Plaintiffs’ lawsuit prior to the filing of that action in the district court. At that meeting the ACLU/SC was asked to support the lawsuit and vigorously declined. Surely, that provides no cause for my recusal.

But in fact it can because it means she might know things about the case that have not been disclosed to the public.

As for his wife’s organization’s participation as amicus below, he holds that 28 U.S.C. § 455 doesn’t quite apply. Which is technically true. But there is word missing from this opinion: “canon.” That is, Reinhardt limits his examination to a number of statutes dealing with recusal, but never once considers what the Code of Judicial Conduct has to say on the matter, which includes certain canons of ethics that he is bound to obey. That is relevant because there is a critical difference in the language between § 455 and Canon 3(C). Section 455 says:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

It goes on to list some specific circumstances. By comparison, Canon 3(C) says:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

And then it goes on to list pretty much the same specific circumstances. But notice the critical difference in language. Canon 3 says that such circumstances include “but [are] not limited to” that list of circumstances. Reinhardt goes on to pretend that this list is exhaustive. And maybe that is a reasonable reading of the statute, but in the Canon it is better understood as illustrative of the kinds of issues that should disqualify it.

So consider one of the specifics on the list:

(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:

(i) a party to the proceeding, or an officer, director, or trustee of a party;

(ii) acting as a lawyer in the proceeding;

As Ed Whelan noted “[i]n this case, Ripston [Reinhardt’s wife] was an officer of an entity that acted as a lawyer in the proceeding—a trivial variation on the examples given.” And given the triviality of the difference, Reinhardt should have recused himself from this case. Reinhardt himself said that “I do not participate in any actions by this court when the organization of which my wife is the Executive Director makes any appearance or files any brief, amicus or otherwise, before this court.” But he wants to say that if she only files in the lower court, he is clean.

Reinhardt should have recused himself. And the fact that he can be almost guaranteed to rule in favor of gay marriage is beside the point, regardless of his wife’s involvement in the litigation or not is beside the point. As I wrote a few months ago, responding to a similar argument by Orin Kerr:

[T]he argument seems to be “he is so biased by his liberal activism that he couldn’t possibly be biased by his wife’s involvement”—or at least that is how I understand his somewhat cryptic remarks. But in that case, you are easily meeting the Code of Judicial Conduct statement that one should step aside when one’s “impartiality might reasonably be questioned.” It may be the sad state of our law that we know how Reinhardt is going to rule before he reads a single word of the case, but that cannot be cited as an excuse for disregarding any other violations of the rules of judicial conduct.

I mean suppose it was learned tomorrow that anti-Proposition 8 forces actually bribed Reinhardt to rule in their favor. I mean, I want to be clear that they have never shown any tendency to do anything so dishonorable, but suppose they did? Then by Kerr’s logic, since the bribe isn’t likely to change Reinhardt’s decision, there is no reason to step aside. But if there ever was a case where a judge had to step aside, it is when they are bribed.

I mean he is right to say it is a bit of a mockery to talk about these technicalities, while the elephant in the ethical room is the fact we know Reinhardt will rule in favor of gay marriage not because any plausible interpretation of the Equal Protection Clause would support that outcome, but because that is how Reinhardt wants things to happen. Yes, that is the more egregious bias that should lead him to step aside on his own accord (and probably just generally resign from being a judge barring significant reform). But that isn’t going t happen anytime soon, and the question is whether he should throw out the rulebook altogether.

And there is an important difference between Reinhardt’s activist bias, and the bias arising from issues such as his wife’s involvement in the case. The difference is the evidence. The fact is that Reinhardt doesn’t write opinions that say, “I know the Supreme Court has said X, and the Constitution also says X, but I don’t like that outcome so I will rule that Y is the rule.” He pretends to be following the law and the constitution even as wiser minds know that it is a thin farce unlikely to fool anyone, but himself. But he fakes it just enough that you can’t be sure he is not consciously disregarding it. By comparison facts such as his wife’s involvement in the case are not in dispute.

Anyway, Reinhardt should have recused himself. But as I have said from the beginning, a Reinhardt victory is a pyrrhic one. One involving such obvious misconduct would only be more likely to be overturned.

True. And Reinhardt knows perfectly well that his very presence on the panel makes it more likely that its inevitable anti-Prop-8 ruling will “get cert” in the Supreme Court. It’s just that his ego — his desire to stay on this panel instead of stepping aside for a more blah liberal like Berzon or Schroeder or Clifton or whomever(*), is even bigger than his left-wing bias, if that’s possible.

(*– Granted, it is possible that a constitutionalist judge would be the one to replace Reinhardt if he were to recuse himself. That too figures into his ridiculous, “conclusion first, full-of-holes reasoning afterwards” decision not to step aside.)

#1, It’s a bit subtler than that. He seems to be saying that had the ACLU filed its own brief in the District Court he’d have recused himself, but since it merely signed on to a joint brief by 120-odd organisations that’s not significant enough an involvement to justify recusal. That joining such a brief is really no more than expressing moral support for the plaintiff, rather than actual involvement in the case.

He also says that since the plaintiffs’ consultation with his wife consisted of asking her to join the case, and she refused, that means she wasn’t involved. And I suppose that’s fair enough, provided that they didn’t tell her anything that isn’t on the record, as Aaron points out. He should at least have attached an affidavit from his wife attesting to that fact.

I got that from his harping several times on the number of people who’d filed amicus briefs in the lower court, e.g. “However, even this tenuous ‘interest’ is not present where, as here, the ACLU-SC was one of 122 organizations and individuals to have joined an amicus brief in the lower court, but made no filing of any kind with this court.” He also makes a point of the fact that the briefs the ACLU joined (I hadn’t noticed that there were two) were “filed in the district court by six civil rights organizations and signed by the lawyer for one of the other groups”.

I take all this to mean that he’s claiming the ACLU’s involvement in the district court case was too trivial to be called an “interest”. Which implies that had it been significant, such as filing its own brief signed by its own lawyer, matters would be different.

Is the brief filed in the district court not part of the filing in the appeals court? The brief is part of the record of the district court and is part of the entire record which is before the appeals court. I may not have stated this correctly – but am I missing something?